County Required to Establish Basis for Claimed Exemption from PRA Disclosure

The Third Appellate District granted in part a petition for writ of mandate. The court held that the burden is on a public agency to assert and establish that records sought under the California Public Records Act (CPRA) are exempt from disclosure.

Dean Getz sought emails documenting El Dorado County's contacts with a homeowners association, of which Getz was a member, and a local development company. Getz ultimately sought all communications between the relevant parties over a period of five and a half years. The county produced an index of 42,582 emails that were potentially responsive to Getz' request and asked Getz to refine his request to permit a more focused search.  Because the index provided by the county did not contain the content of the emails, Getz was unable to identify which emails would be responsive to his request.  He reiterated his request that the county provide him with the content of the emails.  When the county refused, explaining that review and redaction of the emails would be unduly burdensome, Getz filed suit, seeking an order directing the county to comply with his CPRA request.

The trial court denied Getz' writ petition, agreeing with the county that his request was overbroad and unduly burdensome.  Getz filed a petition for writ of mandate challenging the trial court ruling.

The court of appeal granted the petition as to the emails, holding that the county was required to comply with Getz' request as to any emails that were not privileged or otherwise exempt from disclosure.  It could reasonably be assumed that records in the county's custody were public records.  Any claim to the contrary had to be be made by the county and supported by substantial evidence.  Further, the burden was on the county to assert and establish any claimed exemption from disclosure.  An agency cannot resist disclosure based on the burden stemming from actions needed to assuage an abstract fear of improvident disclosure, where that fear could be avoided by simply organizing the agency's records by setting privileged documents apart.  The court accordingly vacated the trial court ruling to the extent that it denied Getz' request for production of the 42,582 emails. 

Gertz v. Superior Court (El Dorado County)

Placing Document in Public Office when that Office is Closed does not make Document "Available for Public Inspection"

The Third Appellate District reversed in part a judgment. In the published portion of its opinion, the court held that Placer County violated the Ralph M. Brown Act by failing to make a document available for public inspection at the same time that it was distributed to the members of the county's board of supervisors.

In 2016, Placer County approved a project to develop a resort on about 94 acres near Lake Tahoe. Sierra Watch filed suit challenging that decision, arguing, among other things, that the county violated Gov. Code §54957.5 by failing to make available for public inspection a memorandum distributed to the members of the county board of supervisors on the eve of the board's noticed public meeting regarding the project. The memorandum, which was emailed to the county clerk at 5:36 p.m., was forwarded to all board members a few minutes later. At about the same time, the clerk placed a copy of the memorandum in the clerk's office, which was then already closed for the day and would not reopen until 8:00 a.m. the following morning. Sierra Watch alleged that the clerk's actions violated §54957.5, which requires, in the event a county distributes to its board of supervisors any writing pertinent to an upcoming board meeting less than 72 hours before that meeting, that the county also make that writing "available for public inspection" at a county office "at the time the writing is distributed" to the board.

The trial court rejected Sierra Watch's claim, finding that the clerk complied with §54957.5 by placing the memorandum in the clerk's office, even though that office was closed at the time.

The court of appeal reversed, holding that placement of the memorandum in a closed public office, where it would not be available for public inspection until the following day, did not comply with §54957.5's requirement that it be made available for public inspection at the same time that it was distributed to the board. The plain language of §54957.5 required that the memorandum actually be made available for public inspection. Placing a document in an office that is closed to the public does not accomplish that objective. Because the memorandum was not made available to for public inspection "at the time" it was distributed to the board, the county violated §54957.5.

Sierra Watch v. Placer County

Applying CCP Section 12, Day After Tolling Ends Is Not Included In Calculating Limitations Period

The California Supreme Court affirmed a court of appeal decision. The court held that in cases where the statute of limitations is tolled, the first day after tolling ends is not included in determining whether an action is timely filed.

A City of Fontana police officer allegedly shot and killed Luis Shalabi's father on May 14, 2012, when Shalabi was 17 years old. Shalabi turned 18 on December 3, 2011. Two years later, on December 3, 2013, Shalabi filed suit against the city, the officer, and others for deprivation of civil rights under 42 U.S.C. §1983.
The trial court dismissed the complaint as untimely, finding that the applicable two-year statute of limitations required it be filed no later than December 2, 2013. The court of appeal reversed, holding that Shalabi's lawsuit was timely filed.

The California Supreme Court affirmed, holding that where, as here, a tolling provision suspends the running of a limitations period, the first day after tolling ends is not included in calculating whether an action is timely filed. Under Code Civ. Proc. §12, the "time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." Absent a clear expression of legislative intent that a different rule should apply when a statute of limitations is tolled, the rule set forth in §12 must be applied. Here, Shalabi's 18th birthday was the first day he could bring his lawsuit. As the court of appeal held, under §12, that day, December 3, 2011, needed to be excluded in calculating the two-year limitations period.

Shalabi v. City of Fontana, July 12, 2021

County's Disclosure of Confidential Personnel Records Deemed Illegal as a Matter of Law

The court held that because a county's public disclosure of a public safety officer's confidential personnel records in a court proceeding was illegal as a matter of law, it did not constitute protected activity under the anti-SLAPP statute.

The Ventura County District Attorney's office terminated the employment of investigator Towner after he testified on behalf of a fellow investigator at a Ventura County Civil Service Commission hearing. Towner appealed his termination to the commission. The county filed a petition for writ of mandate seeking to enjoin the commission from hearing Towner's appeal, alleging a conflict of interest. In support of its petition, the county attached various confidential documents from Towner's personnel and disciplinary files. The trial court denied the petition. After hearing, the commission ordered Towner's reinstatement.

Towner sued the county for retaliation and related claims, as well as for violation of the Public Safety Officers Procedural Bill of Rights Act (POBRA) and Penal Code §832.7. Both claims were based on the county's alleged willful and unauthorized disclosure of Towner's confidential personnel files. The county filed a special motion to strike the POBRA and §832.7 claims under the anti-SLAPP statute. The trial court granted the motion.

The court of appeal reversed, holding that the POBRA and §832.7 causes of action did not arise out of protected activity because the county's disclosure of Towner's confidential personnel records was illegal as a matter of law. The county's failure to comply failure to comply with §832.7, which strictly limits the disclosure of a peace officer's personnel records, was illegal as a matter of law under Gov. Code §1222, which makes a public officer's "willful omission to perform any duty enjoined by law" a misdemeanor. Here, the county's failure to treat Towner's personnel documents as confidential was willful, in that the county acted with the intent that the records be filed publicly in the county's writ proceeding. The county's conduct thus constituted a willful omission to perform a public duty enjoined by law, and was therefore not protected activity under the anti-SLAPP statute.

Towner v. County of Ventura

Contracted Employment at County Recycling Facility Constitutes Public Works for Prevailing Wage Purposes

The California Supreme Court holds that contracted employment at county recycling facilities constitutes "public works" for purposes of the prevailing wage law.

 Staffing and management services agency Barrett Business Services, Inc. provided employees for two publicly owned and operated recycling facilities, under contracts with Los Angeles County Sanitation Districts. Employees David Kaanaana and others sued Barrett, alleging, among other things, that it failed to pay them the prevailing wage applicable to workers employed on public works.

The trial court granted Barrett's motion to strike the prevailing wage claim, finding the work plaintiffs performed sorting recyclables did not come within the definition of "public works."

The court of appeal reversed the trial court's ruling on the motion to strike, holding that the trial court erred in finding plaintiffs were not entitled to the prevailing wage for their work at the recycling facilities.

The California Supreme Court affirmed, holding that plaintiffs' work fell within the definition of public works set forth in Labor Code §1720(a)(2). Section 1720(a) defines public work as including "work done for irrigation, utility, reclamation, and improvement districts, and other districts of this type." Because the work at issue was performed for a sanitation district, it fell squarely within this definition.

Barrett nonetheless argued that the work at issue here also needed to comply with §1720(a)(1), which applies to "construction, alteration, demolition, installation, or repair" work. Not so, the court found. Unlike §1720(a)(1), §1720(a)(2) defines public work not in terms of the tasks performed, but in terms of the governmental district for which the work is done. It does not set out an assortment of activities as the construction and installation provision does. Instead, it simply refers to "work." Standing on its own, this generic term may embrace myriad endeavors. However, words used in a statute are considered in context, not isolation. Here, it appeared the Legislature intended §1720(a)(2) to include a wider array of tasks than construction-type labor. Other provisions in §1720(a) contain limiting language when defining street and sewer work, carpet laying, demolition and infrastructure projects, and tree removal as public work. Section 1720(a)(2) does not. It speaks only of "work." This lack of any limiting language is significant. Moreover, the legislative history of the statute and surrounding provisions indicate that the language used by the Legislature reflected an informed choice. The restriction proposed by Barrett thus did not apply. Justice Kruger, joined by Chief Justice Cantil-Sakauye and Justice Jenkins, concurred, writing separately to note the seeming incongruity in the statute's treatment of utility and other covered districts, when compared to other public agencies, and to suggest that it may be time for the Legislature to revisit §1720(a)(2). 

Kaanaana v. Barrett Business Services, Inc. 

March 29 2021.